In Depth

Those who hoped to learn how the Supreme Court of the United States will rule on same-sex marriage likely will need to wait
until next week. The U.S. justices issued three opinions Thursday, although none were from the highly anticipated cases before
them.

The issue in Descamps is whether, under the Armed Career Criminal Act, when a state crime doesn’t require
an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record
of a state proceeding under the “modified categorical approach.” Michael Descamps was convicted of being a felon
in possession of a firearm and the government sought to enhance his sentence under the ACCA, which included a prior conviction
in California for burglary.

The justices held that the modified categorical approach doesn’t apply to statutes like California Penal Code Ann.
Section 459 that contain a single, indivisible set of elements, and they found Descamps’ ACCA enhancement was improper.
Justice Elena Kagan delivered the opinion. Justice Clarence Thomas filed an opinion concurring in the judgment, and Justice
Samuel Alito dissented.

In American Express, the court held the Federal Arbitration Act does not allow courts to invalidate a contractual
wavier of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory
claim exceeds the potential recovery. Scalia delivered the opinion, and Kagan, Ginsburg and Breyer dissented. Sotomayor
did not participate.

American Express users filed a class action, claiming the company violated the Sherman Act, to which American Express sought
to compel individual arbitration under the FAA based on the cardholder agreement. The users argued the cost of expert analysis
necessary to prove the antitrust claims would exceed the maximum recovery for an individual plaintiff. The 2nd Circuit Court
of Appeals held that because of the prohibitive costs respondents would face if they had to arbitrate, the class-action waiver
is unenforceable.

In Agency for International Development, recipients of United States Leadership Against HIV/AID, Tuberculosis, and
Malaria Act of 2003 funds who wish to remain neutral on prostitution sought a declaratory judgment that the policy requirements
of the Act violate their First Amendment rights. The Act requires an organization to have a policy explicitly opposing prostitution
and sex trafficking to be able to receive federal funding to provide HIV and AIDS programs oversees. The 2nd Circuit affirmed
the issuance of a preliminary injunction, holding the policy requirement violated the groups’ freedom of speech.

Roberts delivered the decision. Scalia and Thomas dissented, and Kagan did not participate in the case. The majority held
that the policy requirement violates the First Amendment by compelling as a condition of federal funding the affirmation of
a belief that by its nature cannot be confined within the scope of the government program.

Also pending before the court is Vance v. Ball State University, et al., 11-556, which was argued in November. Ball State employee
Maetta Vance filed her lawsuit claiming she was racially harassed by a co-worker and another employee who had the authority
to tell her what to do and how to clock her hours. The case hinges on the definition of “supervisor.” The school
claims it can’t be held liable because Vance’s harasser didn’t have the power to fire, hire, demote, promote
discipline or transfer her.

The federal court and 7th Circuit Court of Appeals have ruled in favor of the university.

Still awaiting ruling are several high-profile cases, including Hollingsworth v. Perry, 12-144 and United States
v. Windsor, which deal with same-sex marriage and the Defense of Marriage Act; and Fisher v. University of Texas
at Austin, 11-345, which deals with affirmative action. Indiana authored one amicus brief and co-authored another before the court regarding the same-sex marriage
issue.

The U.S. Supreme Court is scheduled to release opinions Monday and will likely add extra days next week to hand down decisions.
Court watchers expect the same-sex marriage cases to come on the last scheduled day for the court, as has been the case with
other controversial cases including last year’s decision on the Patient Protection and Affordable Care Act.

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.